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Re-working needed

Judge says indictment vs. Bonds must be changed

Posted: Saturday March 1, 2008 10:32PM; Updated: Sunday March 2, 2008 9:57AM
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A Bonds' trial on perjury and obstruction of justice charges remains highly likely.
A Bonds' trial on perjury and obstruction of justice charges remains highly likely.
AP
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U.S. District Court Judge Susan Illston has deemed the federal government's indictment against Barry Bonds to be duplicitous, meaning that it has unlawfully charged Bonds with two or more distinct offenses in a single count. Each count should allege only one distinct offense, such as one instance of perjury rather than multiple instances.

Although a victory for Bonds' legal team, Judge Illston's order merely commands the government to re-work the indictment, or to seek a new one, so that an indictment properly charges Bonds. The government should be able to accomplish that task with minimal difficulty, such as by separating the charges into additional counts. Thus, as a probable consequence, Judge Illston's order will only delay the government's case.

Nonetheless, Bonds may perceive the order as bolstering his chances for an acquittal. In a trial, Bonds would likely argue that even if he lied while under oath during the grand jury proceedings, he did so unknowingly, in part due to what he would portray as scattered and imprecise questioning by federal prosecutors.

Keep in mind, to be convicted of perjury, the government must prove that Bonds knowingly and unequivocally lied while under oath about a material matter and in response to a clearly-worded question. Misunderstanding the question, or the context in which it was raised, offers a common defense to perjury. This defense is regularly employed when complex questions were asked of the purportedly perjuring defendant, or when questions were constructed in ways that referred to non-explicit information, such as pronouns that might have referred to different persons or allegedly incriminating events that lacked precise dating.

A judge's characterization of an indictment as duplicitous is premised on several core principles, including the idea that duplicitous indictments fail to provide the defendant with adequate notice and description of the charges to be defended. Indeed, indictments are designed to inform the defendant of the charges against him, a point consistent with our legal system's presumption of innocence.

Judge Illston took the most cautious approach on a matter the government can easily rectify. By ensuring that the indictment contains proper wording, Judge Illston also reduces the opportunity for Bonds to later appeal a guilty verdict on grounds of a duplicitous indictment. Moreover, a review of the just-released grand jury transcript strongly suggests that federal prosecutors asked Bonds precise and comprehensible questions. In other words, despite Saturday's setback for the government, a Bonds' trial on perjury and obstruction of justice charges still seems highly likely.

Michael McCann is a law professor at Mississippi College School of Law and Chair of the Association of American Law Schools' Section on Sports and the Law.

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